Kara Sears
The right to privacy is a legal concept in both the law of torts and constitutional law. While the right to privacy is not explicitly mentioned in the US Constitution, the US Supreme Court has found that several Constitutional Amendments imply privacy rights. For example, in Griswold v. Connecticut, the Supreme Court invalidated a Connecticut law prohibiting the use of contraceptives, even by married persons, establishing a zone of privacy. The right to privacy has also been extended to encompass an individual's right to have an abortion, as in Roe v. Wade, and the right to privacy for persons of the same sex engaging in sexual conduct, as in Lawrence v. Texas. Outside of the US, countries like China, New Zealand, and Australia have also grappled with privacy laws, with varying degrees of recognition and protection.
| Characteristics | Values |
|---|---|
| Countries with constitutional rights to privacy | China, New Zealand, United States |
| Number of national constitutions mentioning the right to privacy | Over 185 |
| Privacy laws applicable to | Public and private sector actors |
| Countries without a constitutional right to privacy | Australia |
| US privacy acts | Privacy Act of 1974, US Privacy Act of 1974, USA PATRIOT Act of 2001, Fair Credit Reporting Act, Computer Fraud and Abuse Act, Child Online Privacy Protection Act, Gramm-Leach-Bliley Act |
| US court cases involving privacy rights | Griswold v. Connecticut, Roe v. Wade, Miranda v. Arizona, Brown v. Board of Education, Stanley v. Georgia, Federal Communications Commission v. Pacifica Foundation, Cohen v. California, De Jonge v. Oregon, NAACP v. Alabama, Snyder v. Phelps, Strutner v. Dispatch Printing Co., Eisenstadt v Baird, Lawrence v. Texas, Riley v. California |
| US constitutional amendments implying privacy rights | First, Third, Fourth, Fifth, Ninth, Fourteenth |
| Privacy rights mentioned in | Universal Declaration of Human Rights, International Covenant on Civil and Political Rights |
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What You'll Learn
Privacy and the First Amendment
Privacy refers to an individual's right to seclusion or to be free from public interference. While the US Constitution does not explicitly mention privacy, case law has established a zone of privacy as an extension of the First Amendment.
In Griswold v. Connecticut (1965), Justice William O. Douglas placed a right to privacy in a "penumbra" cast by the First, Third, Fourth, Fifth, and Ninth Amendments. This decision established a precedent for subsequent cases, such as Eisenstadt v. Baird (1971) and Lawrence v. Texas (2003), which extended the right to privacy to unmarried couples and same-sex couples, respectively.
The First Amendment protection of privacy is strongest when the invasion of privacy occurs in the home or in other places where an individual has a reasonable expectation of privacy. For example, in Stanley v. Georgia (1969), the Court struck down a Georgia law prohibiting the possession of obscene materials in the home, citing the First Amendment. Similarly, in Roe v. Wade, the Court used the right to privacy derived from the Fourteenth Amendment to protect an individual's right to abortion.
However, privacy claims often clash with First Amendment rights to free speech and a free press. For example, individuals may claim a privacy right to be "let alone" when the press reports on their private lives or follows them in an intrusive manner. In Packer Corporation v. Utah (1932), Justice Brandeis suggested that the Court consider the conditions under which privacy interests are intruded upon, foreshadowing the distinction between privacy interests in the home and in public.
While the courts typically side with the press in the publication of private facts, citing the freedom of the press, there are exceptions. For example, in Zacchini v. Scripps-Howard Broadcasting Co. (1977), the Court held that the First Amendment did not protect a broadcast that appropriated a performer's act, injuring his right to publicity.
The right to privacy is a complex and evolving area of law, with ongoing debates about its scope and application in the modern world, especially in the context of mass surveillance and national security.
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Privacy and the Fourteenth Amendment
The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. It addresses citizenship rights and equal protection under the law at all levels of government. The Fourteenth Amendment was a response to issues affecting freed slaves following the American Civil War.
The Fourteenth Amendment has been used as a basis for landmark Supreme Court decisions, such as Brown v. Board of Education (1954), which prohibited racial segregation in public schools, and Loving v. Virginia (1967), which ended interracial marriage bans. In Griswold v. Connecticut (1965), the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find an implied right to privacy in the Constitution.
In Eisenstadt v. Baird (1971), the Supreme Court extended the right to purchase contraceptives to unmarried couples, finding that "the constitutionally protected right of privacy inheres in the individual, not the marital couple." In Roe v. Wade (1973), the Court used the right to privacy derived from the Fourteenth Amendment to protect an individual's right to have an abortion. However, this was later overturned in Dobbs v. Jackson Women's Health Organization (2022).
In Lawrence v. Texas (2003), the Supreme Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in... sexual conduct." The Court held that "the petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."
While the right to privacy is an element of various legal traditions, protecting individuals from governmental and private actions that threaten their privacy, the courts will usually side with the press in the publication of private facts, upholding freedom of the press.
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Privacy in the digital age
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy. For example, the Constitution of the Russian Federation states that "State protection of human and civil rights and freedoms in the Russian Federation shall be guaranteed". China's Constitution also stipulates that "all states must abide by and be held accountable for any violation of the law; the law specifically protects civil rights of a citizen's personal dignity and confidentiality of correspondence".
However, in the digital age, privacy has become an increasingly complex issue. The widespread and often hidden data collection methods used online make it difficult for individuals to understand what data is being collected and how it is used. Additionally, the nature of the internet makes it challenging to control the distribution of personal data. Many individuals also lack the necessary knowledge and tools to adequately manage their digital privacy.
The economic value of personal information has also become a critical aspect of privacy in the digital age. While personal information can be valuable for businesses, the unauthorized and unregulated use of such information can lead to problems such as identity theft, financial fraud, and indiscriminate surveillance. Governments also collect data for reasons such as national security and crime prevention, but without proper oversight, this can lead to an infringement on civil liberties.
To address these concerns, national and international legislation has been enacted to protect individuals' privacy rights, focusing on personal online privacy. These regulations include measures such as data control, transparency, information security, and informed consent. However, despite these efforts, maintaining privacy in the digital age remains a challenging task due to the constant evolution of technology and the increasing sophistication of online threats.
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Privacy and the press
The right to privacy is not explicitly mentioned in the US Constitution. However, in Gilbert v. Minnesota (1920), Justice Louis D. Brandeis stated in his dissent that the First Amendment protected the privacy of the home. In Griswold v. Connecticut (1965), Justice William O. Douglas placed a right to privacy in a "penumbra" cast by the First, Third, Fourth, Fifth, and Ninth Amendments. This case ruled that marital decisions, such as the use of contraceptives, are considered private and legally protected by the Constitution, and could not be made illegal by state or federal laws.
In Roe v. Wade, the Supreme Court extended the right to privacy to encompass an individual's right to have an abortion, derived from the Fourteenth Amendment. However, this was later overturned by the Dobbs decision, which allowed states to make abortion illegal.
Privacy claims often clash with First Amendment rights. For example, individuals may assert their right to privacy when the press reports on their private life or follows them in an intrusive manner. The courts will usually side with the press in the publication of private facts, upholding freedom of the press in the US Constitution. There is a legitimate public interest in recent events and the private lives of prominent figures. However, this cannot go too far, and the media must not satisfy a morbid curiosity.
In Australia, there is no constitutional right to privacy, but the Privacy Act 1988 provides some protection for individuals' personally identifiable information and its usage by the government and large companies. Similarly, New Zealand has no explicit constitutional right to privacy, but it has ratified the International Covenant on Civil and Political Rights, which contains a right to privacy. The Privacy Act 2020 addresses the collection, storage, and handling of information.
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Privacy in the common law
In the United States, "invasion of privacy" is a commonly used cause of action in legal pleadings. The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the 1890 article "The Right to Privacy", written by Samuel Warren and Louis Brandeis. The article expressed concern about the increasing intrusion of the press and the rise of small camera technology, which could infringe on an individual's right to privacy.
The right to privacy is defined as "the right to be let alone", or to be free from unwarranted publicity and interference by the public in matters that are not of public concern. This right is often associated with the Fourth Amendment, which protects against unwarranted search and seizure, and the Fourteenth Amendment, which guarantees due process. The Fifth Amendment also plays a role in protecting privacy, as it relates to individual liberties and the right to autonomy in making private, intimate decisions.
In several states, the right to privacy is pronounced by statute, and some courts have recognised that this right is derived from already established rights, such as property rights. While the Constitution of the U.S. protects privacy from governmental invasion, the protection of an individual's general right to privacy is largely left to the law of individual states.
Modern tort law, as categorised by William Prosser, includes four categories of invasion of privacy: Intrusion of solitude, public disclosure of private facts, false light, and appropriation. To constitute an invasion of privacy, the act must be highly offensive to a reasonable person and result in mental suffering, shame, or humiliation.
In practice, the Federal Trade Commission's (FTC) privacy jurisprudence has become one of the most influential forces in regulating information privacy in the United States. The FTC has been enforcing companies' privacy policies through its authority to police unfair and deceptive trade practices since the late 1990s. While there is a lack of judicial decisions, companies look to settlement agreements as a guide for their privacy practices.
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Frequently asked questions
The US Constitution does not explicitly mention the right to privacy. However, the Supreme Court has interpreted several Constitutional Amendments to imply privacy rights. The First Amendment, for instance, protects the privacy of the home.
Some notable cases include Griswold v. Connecticut, Roe v. Wade, Miranda v. Arizona, Brown v. Board of Education, and Eisenstadt v. Baird.
In Eisenstadt v. Baird (1971), the Supreme Court extended the right to purchase contraceptives to unmarried couples, establishing that the right to privacy "inheres in the individual, not the marital couple."
In Lawrence v. Texas (2003), the Supreme Court relied on the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in... sexual conduct."
Yes, privacy rights are recognised in other countries. For example, New Zealand has ratified the International Covenant on Civil and Political Rights, which includes a right to privacy. China's Constitution also stipulates the protection of civil rights, including citizens' personal dignity and confidentiality of correspondence.
